April 26, 2012
Corbin on Faith-Based Discrimination
Caroline Mala Corbin (Miami) has just posted on SSRN her essay Expanding the Bob Jones Compromise. The essay will appear in Austin Sarat, ed., Matters of Faith: Religoius Experiences and Legal Responses in the United States (forthcoming Cambridge U. Press). Here's the abstract:
Sometimes the right to liberty and the right to equality point in the same direction. Sometimes the two rights conflict. Which constitutional value should prevail when the right to religious liberty clashes with the right to be free from discrimination on the basis of race and sex? More particularly, should faith-based organizations, in the name of religious liberty, be immune from anti-discrimination law?
Bob Jones University v. United States suggests a compromise: permit faith-based organizations to discriminate on the basis of race or sex if that discrimination is religiously required, but at the same time refuse to condone or support that discrimination by denying those religious organizations any financial aid. In fact, it is already federal policy to withhold government subsidies from religious organizations that discriminate on the basis of race, and the Bob Jones Court rejected a free exercise challenge to that policy. The same policy should apply with regard to discrimination on the basis of sex. Allowing religious groups to discriminate on the basis of sex but declining to provide grants, vouchers, or tax exempt status to those that do discriminate honors both our commitment to religious liberty and our commitment to equality.
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This argument proves far too much. If allowing religious organizations to discriminate on irrational grounds "honors our commitment to liberty", why doesn't allowing ANYONE to discriminate (and merely denying them government subsidies) increase "liberty"?
(Okay, I know that there are some libertarian lunatic-fringers who actually believe this, but I'm assuming Ms. Corbin is not one of them, so what gives?)
As Employment Div. v. Smith teaches, repugnant ideas are not any less repugnant just because someone slaps a label on them and calls them a "religion."
Posted by: Anonymous | Apr 28, 2012 7:11:16 PM